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Love your EFCA articles.— Guest

Clear and concise— B. Lulias

Superb structure and content advisory for the LM avalanche approaching. I particularly liked the tripwire commentary and redirection to the Jump team. Then there are those masterful remarks in the communications tips, especially the employee-centric point.. Liked the set up to the toxic employee in a compressed time period...should be appealing to most managers. — W. Moyer

Labor Relations Insight by Phil Wilson

NLRB Sets its Sights on Unionized Companies

Over the last 8 years we’ve witnessed a constant barrage of pro-union decisions from the NLRB. Revamped election rules shrunk election periods by nearly one-third. Countless other decisions intend to tilt the election playing field in their favor. In spite of this union membership remains at its all-time low, as unions continue to snatch defeat out of the jaws of victory. They are organizing new members at a tepid pace that is just barely keeping up with lost members. This may explain why the NLRB has recently turned its attention to unionized employers.

In May the General Counsel issued Memorandum GC 16-03 which essentially takes away the right of an employer to “withdraw recognition” from a union that loses majority status. As you probably know, an employer is only allowed to bargain with a union that has proven it represents a majority of employees in an appropriate bargaining unit. Otherwise the company violates the law by recognizing a non-majority union.

This rule on majority status is tricky. If a company thinks a union has lost its majority status it is between a rock and a hard place. If it bargains with a non-majority union it is committing an unfair labor practice (ULP). On the other hand if it refuses to bargain with a union that does represent a majority it is also committing a ULP.

Historically employers in this situation have two options. They could file an RM petition (essentially a decertification petition filed by management and not a bargaining unit member). Or they could withdraw recognition – basically put the union on notice that they would no longer bargain with the union due to this doubt about majority status. To prevent abuse in either situation the employer has to have good evidence that the union has lost its majority status.

The new GC memo essentially takes away withdrawal of recognition as an option. It states that an employer is not allowed to withdraw recognition unless there was a prior RD or RM election. After a union loses an RD or RM election the union no longer represents anyone, so withdrawal of recognition becomes moot. If adopted by the NLRB this will overturn the 2001 Levitz decision (which adopted the historic rule that companies could withdraw recognition without an election).

The reason withdrawal of recognition should remain an option is that whether or not a union has lost an RD or RM election the employer is still committing an unfair labor practice if it recognizes and bargains with a minority union. That is part of the statute. There has to be some process that allows a company to protect itself when it is in this no-man’s land between a bargaining obligation and an actual RD or RM result.

But since this proposal makes it harder for employees to get rid of their union there is little doubt the Board will adopt the General Counsel’s position. That disenfranchises employees who no longer wish to be represented, but this Board and General Counsel have no qualms about squelching the voices of folks who wish to represent themselves.

Speaking of tilting the playing field in favor of unions, the Board also severely restricted the 68-year old precedent of giving the employer the right to permanently replace economic strikers. In its American Baptist Homes decision the Board ruled that it is unlawful for an employer to hire permanent striker replacements where any part of the intent of that decision is to harm the union. Excuse me? I’m pretty sure the ONLY purpose of either a strike or hiring replacement workers is to harm the other side. That’s why they are called economic weapons.

This decision essentially guts the Supreme Court decision in Mackay Radio. In that decision the Supreme Court approved the use of permanent replacement workers as one of the economic weapons available to an employer after a union makes the decision to try to shut down a company by striking. The new Board decision turns Mackay Radio on its head. Until American Baptist Homes is overturned (surely it will be) every case where an employer hires permanent replacement workers will become a never-ending legal battle that will wind its way through courts for years.

This decision is exactly the opposite of what the NLRA hoped to accomplish. As Phil Miscimarra wrote in his terrific dissent, the NLRA was adopted to eliminate obstructions to commerce. While paradoxical, one of the ways it does this is by allowing both sides to use potentially lethal economic force when they cannot reach a compromise at the bargaining table. The point is to make strikes so painful for both sides that the incentive is to settle and avoid the battle in the first place. The Supreme Court understood this perfectly when they allowed permanent replacement more than 75 years ago. The American Baptist Homes decision essentially removes that weapon from employers and is likely to lead to more strikes (not less) and fewer union shops (not more).

Unfortunately the NLRB continues to ignore the one rule of economics. Unions should be careful what they wish for.

In another effort to facilitate the ease of union organizing, the National Labor Relations Board (NLRB) returned to the Sturgis standard in the recently decided Miller & Anderson, Inc. case. This now allows contracted employees to be grouped with the employer’s owned employees for the purposes of an appropriate bargaining unit. Here is a piece of sound advice from the National Law Review:

employers utilizing temporary employees supplied by another should carefully review the agreement under which such temporary employees are supplied and, most importantly, the terms and conditions under which such temporary employees are employed, managed, and controlled.

As you already know from the email we sent you at the time, a Federal District Court in Texas issued a nationwide injunction against the Persuader Rule. If you missed our first post, you can read more details here.

New advice from the NLRB Associate General Counsel to regional staff indicates that in a case where an employer would be required to post a “notice to employees” when the employer has been charged with violating the NLRA, the notice should probably be read aloud to the employees. At issue is the literacy of the employees, whatever their native language.

In the ludicrous category, the NLRB tried to claim that refusing service to a customer because of poor tipping experience was somehow the employer’s fault, and could therefore be considered protected concerted activity. When an airport skycap was fired for refusing to handle the bags of French flyers (supposedly known for miserly tipping), the skycap was fired for failing to perform his job. The NLRB attempted to have him restated, but an administrative law judge repudiated the boards tortuous reasoning and dismissed the case.

The DOL is also handing unionistas a sharpened tool to use against employers in the guise of substantially revised adjustments to fines for ERISA violations. The interim rule takes effect August 1, and the DOL is expected to make annual inflation adjustments beginning in 2017.

The NLRB used an ever-widening definition of protected concerted activity to twist a conversation between an employee and a company owner into a “discharge,” even when the employee was not discharged, and knew that he wasn’t. The board had to overrule another of its own administrative law judges to do so. Once again, National Law Review provides the take away:

The board is continuing to aggressively apply the concept of protected concerted activity. It also delivers the message that the adage “No Harm, No Foul,” does not apply in labor law. Innocent or momentary lapses in judgment are likely not to be excused even where an employer quickly undoes any potential harm, if the matter gets to the Board’s attention.

For now, tribal gaming will remain under the purview of the NLRB, as the Supreme Court declined to hear the case. The last chance for Native American tribal sovereignty remains legislative action, but although the House passed a bill last November to strip the NLRB of authority, it has stalled in the Senate.

Not everything has been going the NLRB’s way recently. The D.C. Circuit Court of Appeals popped the NLRB’s inflated ego when the court denounced the Board’s rationale and denied enforcement of a part of a board order directing an employer to reimburse the board and a union for attorney’s fees and litigation expenses. One of the judges wrote that “contrary to the Board’s apparent belief, it is not a court of law or equity.” Unfortunately, the decision focused on an interpretation of only one section of the NLRA, and it is highly likely that the renegade board will attempt to find some other justification to apply a similar tactic in the future.

The Eighth Circuit reinforced several earlier rulings that arbitration provisions waiving class actions are enforceable. The court did reinforce the board’s ruling that the arbitration clause was overly broad, and to be appropriate needed language informing employees that they retained the rights to file charges with the NLRB.

Leave it to the small but ever aggressive IWW (Industrial Workers of the World) to look for bread crumbs in odd places. In an attempt to organize prisoners who are employed by private contractors, the IWW organized prison labor strikes in five states, demanding the right to form a union. To further their objective, the IWW Incarcerated Workers Organizing Committee has called for a nationwide prison strike on September 9th.

It will be interesting to see how unionized security guards feel about their inmates also organizing, and how labor solidarity plays out in this context could be quite a spectacle.

Although historically unions have always remained behind the curve in modernizing their organizing processes – probably as a legacy of unionism promoting laziness and resistance to change – some of them have caught on to the value of new technology and social media tools to extend their reach.

App technology now allows unions and members to sign petitions, access video and images, read press releases, connect to social media accounts, report workplace violations, and keep abreast of union news. With the NLRB’s focus on broadening employee rights through the use of technology, and with a smartphone in almost every pocket, unions are finding more ways to have direct communication with members and potential members without having to meet face to face. The NLRB has stated it has plans to upgrade its own app so that, according to board chairman Mark Gaston Pearce, workers and unions will be able “to take action from anywhere.”

With the use of electronic union authorization cards and allowing workers to use an employer’s email system to engage in organizing and other “protected activities,” employers may need to become more proactive than ever in communicating the value of a direct relationship.

Earlier this month was the deadline to submit signatures for statewide ballot initiatives to be voted on in the November election. One initiative that Washington State voters should expect to see is Initiative 1501. Proponents of the bill say that it is a “measure to protect senior citizens from financial crimes.” However, the Freedom Foundation says differently.

It’s the latest step in an ongoing fight over the same issue, and that being whether the state has to disclose to the Freedom Foundation the list of SEIU 775-represented individual providers, or IPs.

SEIU 775 represents individual providers, or people who get paid through Medicaid to care for those with disabilities or the elderly. The Freedom Foundation has been trying to get a list of those IPs so they could make sure the caretakers knew that they do not have to pay the union dues automatically deducted from their check if they don’t wish to. This, after the Supreme Court ruled in Harris v. Quinn that home health care workers “cannot be compelled to financially support a union they don’t wish to join” back in June 2014.

SEIU doesn’t want Freedom Foundation to get ahold of those names for obvious reasons, though they’re claiming this initiative is about protecting the privacy of their members.

It’s interesting when unions claim to care about working people when that message is rarely seen through their actions.

Dave Regan

Dave Regan is a prime example. After spending millions of SEIU members’ dues money on a California ballot initiative – that actually violated his secret deal with the California Hospital Association (a secret deal that was more about protecting hospital administrators than his members) – Regan was ordered by a federal arbitrator to withdraw his ballot initiative.

After years screwing over California businesses, the public, and his own members, it comes as no surprise that now top political and union leaders don’t even want to be in the same room with Regan. It’ll be interesting to see how much longer he is able to keep his seat.

Another example of SEIU hypocrisy involves their Fight for $15 organizers. Not happy with their working conditions, these organizers have been trying to join SEIU’s staff union, Union for Union Representatives. SEIU is fighting the move by claiming their Fight for $15 organizers aren’t actually employees…even though we all know they are.

In other bad news for SEIU, Local 521 lost about 20 percent of its membership last month when Fresno County Correctional officers voted to change their representation from SEIU to an independent union, Fresno County Public Safety Association. This was the members’ fourth attempt to decertify SEIU. SEIU was able to get the last election, which they technically lost, nullified after complaining that ballots were mailed out four days early.

A recent Forbes article looked at Wall Street’s disinterest in General Motors. In spite of the company’s consistently large dividends and improving financials, GM’s stock is still failing to catch up with the rest of its competitors and the overall market in general. This begs the question – “Why are investors staying away from GM’s stock?”

In New Jersey, the state Senate approved legislation that would gradually increase the minimum wage to $15 an hour. The legislation is now in the hands of Governor Chris Christie, who many believe will veto it.

In line with Christie is Ohio Attorney General, Mike DeWine. When asked by Hamilton County Prosecutor Joseph Deters, what his opinion of the movement in Cleveland is, DeWine stated that “cities cannot legally set their own minimum wage.” Fight for $15 activists aren’t letting that deter them, concluding that the Attorney General’s opinion is “only an opinion.”

Seattle is one of the most progressive cities in the country. They were the first to implement a $15 wage. They led the state of Washington in recreational Marijuana reform. Seattle has been successful at these kinds of efforts because they are able to rally various groups together around such issues.

They’re doing it again, except this time they’re focused on organizing the city’s for-hire drivers (Uber, Lyft). It’ll be interesting to see how it plays out. If the coalition of groups brought together says anything – from big labor unions to environmentalists, immigrant organizations, faith leaders and more – it’s sure to be a scene to watch.

One of the biggest bits off the campaign trail this month was the announcement of both parties running mates.

Gov. Mike Pence

Clinton went with Tim Kaine and Trump with Mike Pence. While Pence’s stance on labor issues are pretty much what you’d expect – tough on unions, pro Trans-Pacific Partnership, right-to-work supporter – Kaine’s relationship with labor is a bit more interesting. In fact, it’s pretty similar to Pence. He’s long defended his home state of Virginia’s right-to-work laws and, in the past, he’s also stood up for looser banking regulations and the TPP.

Senator Tim Kaine

The AFL-CIO will no doubt speak in support of Kaine because they’re already backing Hillary, but her choice probably threw them for a loop…kind of like the GOP’s relationship with Local 1199/SEIU.

It appears that in exchange for the union’s support of the Republican Party’s bid to maintain control of the Senate, the GOP will be helping to push through “a $15 statewide minimum wage and the strongest paid family leave policy in the nation.”

Just days ago, 400 oil platform workers in the North Sea stopped working for 24 hours. This is the largest industrial action the North Sea has seen in the last 28 years. Also this month, Han Sang-gyun, leader of the 600,000 member Korean Confederation of Trade Unions was sentenced to five years in prison after he was convicted of all eight criminal counts against him, namely unauthorized rallies and protests.

The Congress of South African Trade Unions is leading a charge to encourage its member unions, which represent 1.9 million workers, to take job preservation into consideration when they enter into their upcoming salary negotiations. Bheki Ntshalintshali, general-secretary of Cosatu had the following to say in an interview with Bloomberg:

“You don’t want to get an increase and then thereafter people are retrenched and only a few remain to enjoy the benefits of that particular increase.”

Prime Minister Valls

The controversial French labor reform bill was forced through Parliament earlier this month. In defense of the bill, French Prime Minister Manual Valls argued that the most important thing for the country is to boost hiring after high unemployment. This bill encourages that.

Cambodia passed their own contentious labor law back in May. Labor leaders are worried about the future effect of the new law saying it “gives government too much power over union activities,” makes it harder for workers to organize, and is lacking in the protections labor laws should afford workers.

Labor leaders in the Netherlands are singing a different tune than those in France or Cambodia, as a new law was passed that allows employees to “report workplace misconduct.” They’re calling this new law the Whistleblowers’ Center Act. This would be similar in the U.S. to filing unfair labor practice charges with the NLRB.